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[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Proposed Rules]
[Pages 29675-29680]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12541]

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DEPARTMENT OF JUSTICE

28 CFR Part 50

[Docket No. OAG 142; AG Order No. 3279-2011]
RIN 1105-AB38

Assumption of Concurrent Federal Criminal Jurisdiction in Certain 
Areas of Indian Country

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to establish the procedures for an Indian 
tribe whose Indian country is subject to State criminal jurisdiction 
under Public Law 280 (18 U.S.C. 1162(a)) to request that the United 
States accept concurrent criminal jurisdiction within the tribe's 
Indian country, and for the Attorney General to decide whether to 
consent to such a request.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before July 7, 2011. Commenters should be aware that 
the electronic Federal Docket Management System will not accept 
comments after Midnight Eastern Time on the last day of the comment 
period.

ADDRESSES: Comments may be mailed to Mr. Tracy Toulou, Director, Office 
of Tribal Justice, Department of Justice, 950 Pennsylvania Avenue, NW., 
Room 2310, Washington, DC 20530. To ensure proper handling, please 
reference OAG Docket No. 142 on your correspondence. You may submit 
comments electronically or view an electronic version of this proposed 
rule at http://www.regulations.gov.

FOR FURTHER INFORMATION, CONTACT: Mr. Tracy Toulou, Director, Office of 
Tribal Justice, Department of Justice, at (202) 514-8812 (not a toll-
free number).

SUPPLEMENTARY INFORMATION:
    Posting of Public Comments. Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov. Such information 
includes personal identifying information (such as your name, address, 
etc.) voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. If you want to submit personal 
identifying information (such as your name, address, etc.) as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph 
of your comment. You also must locate all the personal identifying 
information you do not want posted online in the first paragraph of 
your comment and identify what information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph.
    The reason the Department is requesting electronic comments before 
Midnight Eastern Time on the day the comment period closes is that the 
inter-agency Regulations.gov/Federal Docket Management System (FDMS), 
which receives electronic comments, terminates the public's ability to 
submit comments at Midnight on the day the comment period closes. 
Commenters in time zones other than Eastern may want to take this fact 
into account so that their electronic comments can be received. The 
constraints imposed by the Regulations.gov/FDMS system do not apply to 
U.S. postal comments, which will be considered as timely filed if they 
are postmarked before Midnight on the day the comment period closes.

Discussion

    For more than two centuries, the Federal Government has recognized 
Indian tribes as domestic sovereigns that have unique government-to-
government relationships with the United States. Congress has broad 
authority to legislate with respect to Indian tribes, however, and has 
exercised this authority to establish a complex jurisdictional scheme 
for crimes committed in Indian country. (The term ``Indian country'' is 
defined in 18 U.S.C. 1151.) Criminal jurisdiction in Indian country 
typically depends on several factors, including the nature of the 
crime; whether the alleged offender, the victim, or both are Indian; 
and whether a treaty, Federal statute, executive order, or judicial

[[Page 29676]]

decision has conferred jurisdiction on a particular government.
    Here, three Federal statutes are particularly relevant: the General 
Crimes Act (also known as the Indian Country Crimes Act), 18 U.S.C. 
1152; the Major Crimes Act (also known as the Indian Major Crimes Act), 
18 U.S.C. 1153; and Public Law 280, Act of Aug. 15, 1953, Public Law 
83-280, 67 Stat. 588, codified in part as amended at 18 U.S.C. 1162. 
Under the General Crimes and Major Crimes Acts, which apply to most of 
Indian country, jurisdiction to prosecute most crimes in Indian country 
rests with the Federal Government, the tribal government, or both 
concurrently. State criminal jurisdiction in Indian country is 
generally limited to crimes committed by non-Indians against non-Indian 
victims, as well as victimless crimes committed by non-Indians.
    But there is an important exception to this general rule: In 
certain areas of Indian country, Public Law 280 renders the General 
Crimes and Major Crimes Acts inapplicable and instead gives the States 
jurisdiction over crimes committed by or against Indians. Specifically, 
the Public Law 280 criminal-jurisdiction provision codified at 18 
U.S.C. 1162 applies in parts of Alaska, California, Minnesota, 
Nebraska, Oregon, and Wisconsin. (Section 1162(a) expressly exempts 
some areas of Indian country in these States, such as the Red Lake 
Reservation in Minnesota and the Warm Springs Reservation in Oregon; 
and some of these States have formally ``retroceded'' jurisdiction over 
other reservations.) In the areas of Indian country covered by section 
1162, which are known as ``mandatory'' Public Law 280 jurisdictions, 
the Federal Government can prosecute violations of general Federal 
criminal statutes that apply nationwide, such as Federal narcotics 
laws, but typically cannot prosecute violent crimes such as murder, 
assault with a dangerous weapon, or felony child abuse.
    In contrast, the Public Law 280 provision that is codified at 25 
U.S.C. 1321 provides a basis for other States to elect to assume 
criminal jurisdiction in Indian country on an optional basis, subject 
to the consent of the affected tribe. In the Indian country of these 
tribes, known as ``optional'' Public Law 280 jurisdictions, the 
Department understands the applicable statutes to provide that the 
Federal Government retains concurrent jurisdiction under the General 
Crimes and Major Crimes Acts. See U.S. Department of Justice, United 
States Attorneys' Manual, tit. 9, Criminal Resource Manual Sec.  688 
(Federal Government may exercise concurrent criminal jurisdiction in 
``the so-called `option states' * * * which assumed jurisdiction 
pursuant to Public Law 280 after its enactment''); United States v. 
High Elk, 902 F.2d 660, 661 (8th Cir. 1990) (per curiam) (holding that 
Federal courts retain Major Crimes Act jurisdiction in those States 
that voluntarily assumed jurisdiction under Pub. L. 280); cf. Negonsott 
v. Samuels, 507 U.S. 99, 105-06 (1993) (holding that a different 
Federal statute conferred criminal jurisdiction on a State without 
divesting the United States of concurrent criminal jurisdiction). But 
cf. United States v. Burch, 169 F.3d 666, 669-71 (10th Cir. 1999) 
(holding that a 1984 ``direct congressional grant of jurisdiction over 
[crimes committed in one town in] Indian country'' vested Colorado with 
exclusive jurisdiction akin to mandatory jurisdiction under Public Law 
280).

The Tribal Law and Order Act of 2010

    The Tribal Law and Order Act of 2010 (TLOA) was enacted on July 29, 
2010, as Title II of Public Law 111-211. The purpose of the TLOA is to 
help the Federal Government and tribal governments better address the 
unique public-safety challenges that confront tribal communities.
    Section 221 of the new law permits an Indian tribe with Indian 
country subject to State criminal jurisdiction under Public Law 280 to 
request that the United States accept concurrent jurisdiction to 
prosecute violations of the General Crimes Act and the Major Crimes Act 
within that tribe's Indian country. This jurisdiction will be 
concurrent among the Federal Government, the State government, and 
(where applicable) the tribal government. Section 221 provides for the 
United States to assume concurrent criminal jurisdiction at the tribe's 
request, and after consultation between the tribe and the Attorney 
General and consent to Federal jurisdiction by the Attorney General. 
The State need not consent. Once the United States has accepted 
concurrent criminal jurisdiction, Federal authorities can investigate 
and prosecute offenses that Public Law 280 currently bars them from 
prosecuting.
    Section 221 does not expressly require Indian tribes to request 
that the United States accept concurrent jurisdiction to prosecute 
``all'' violations of the General Crimes and Major Crimes Acts within 
the tribe's Indian country. To the contrary, the statute provides that 
those two Acts ``shall apply in the areas of the Indian country of the 
Indian tribe'' only ``at the request of'' the tribe and ``after 
consultation with and consent by the Attorney General.'' 18 U.S.C. 
1162(d). Therefore, the Department understands section 221 to permit 
the tribe to request and the Attorney General, after consultation with 
the tribe, to consent to assumption of concurrent Federal jurisdiction 
over a limited set of crimes or over crimes in a limited geographic 
portion of the tribe's Indian country.

Assumption of Concurrent Federal Criminal Jurisdiction

    This rule establishes the framework and procedures for a mandatory 
Public Law 280 tribe to request the assumption of concurrent Federal 
criminal jurisdiction within the Indian country of the tribe. It also 
describes the process to be used by the Attorney General in deciding 
whether to consent to such a request.
    The TLOA provides that the Attorney General is the deciding 
official for requests submitted by Indian tribes under section 221. 
Given the potentially high volume of requests, the large number of 
Department of Justice components and non-Department partners that 
should be conferred with, and the detailed tribe-by-tribe analyses that 
will be needed, the Attorney General is delegating decisional authority 
under section 221 to the Deputy Attorney General. The Office of the 
Deputy Attorney General (ODAG) will receive recommendations from the 
Office of Tribal Justice (OTJ), the Executive Office for United States 
Attorneys (EOUSA), and the Federal Bureau of Investigation (FBI), after 
discussions with other Department components (including the Bureau of 
Prisons (BOP) and the Office of Community Oriented Policing Services 
(COPS)) and other Federal, tribal, State, and local entities. OTJ will 
handle the staffing and tracking of assumption requests.
    Pursuant to Executive Order 13175 of November 6, 2000, the 
Department has held tribal consultations regarding these proposed 
assumption procedures.

Retrocession of State Criminal Jurisdiction

    The process described in this rule is separate and distinct from 
Public Law 280's ``retrocession'' process for transferring criminal 
jurisdiction from the State government to the Federal Government. See 
25 U.S.C. 1323(a). The retrocession process is initiated by the State, 
not the tribe. By contrast, the process for a tribe to seek assumption 
of concurrent Federal criminal jurisdiction under section 221 does not 
require the State's approval. And unlike retrocession, a section 221 
assumption gives the United States concurrent

[[Page 29677]]

criminal jurisdiction without eliminating the State's criminal 
jurisdiction.
    After a tribe has submitted a request under section 221, the 
Department will publish a notice in the Federal Register inviting input 
from affected State and local law enforcement authorities. But 
ultimately, it is the tribe's request and the Attorney General's 
consent that will determine whether the United States accepts 
concurrent criminal jurisdiction.

Where Section 221 Does Not Apply

    The process described in this rule applies only to Indian country 
that is subject to ``mandatory'' Public Law 280 State criminal 
jurisdiction under 18 U.S.C. 1162. As indicated above, the Department 
understands that the United States already has concurrent jurisdiction 
over General Crimes Act and Major Crimes Act violations in areas where 
States have assumed criminal jurisdiction under ``optional'' Public Law 
280. Accordingly, although the TLOA requires the United States to 
assume concurrent criminal jurisdiction ``[a]t the request of an Indian 
tribe, and after consultation with and consent by the Attorney 
General,'' 25 U.S.C. 1321(a)(2), the Department does not believe 
requests by tribes are necessary to establish concurrent Federal 
jurisdiction in such areas.

Regulatory Certifications

Executive Order 12866--Regulatory Planning and Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866 of September 30, 1993, as amended, Regulatory 
Planning and Review, section 1(b), Principles of Regulation. The 
Department of Justice has determined that this rule is a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), and, 
accordingly, this rule has been reviewed by the Office of Management 
and Budget.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The process provided under section 221 
allows the United States to assume concurrent criminal jurisdiction 
over offenses in a particular area of Indian country, without 
eliminating or affecting the State's existing criminal jurisdiction, 
and accordingly it imposes no new burdens on the State. This regulation 
sets forth the procedural mechanism for the Department to consider, in 
consultation with other Federal, tribal, State, and local authorities, 
whether or not to consent to a request from an individual tribe for the 
Federal Government to assume concurrent criminal jurisdiction within 
that tribe's Indian country. Therefore, in accordance with Executive 
Order 13132 of August 4, 1999, it is determined that this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in section 
3(a) and (b)(2) of Executive Order 12988 of February 5, 1996.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This rule comports with Executive Order 13175 of November 6, 2000. 
The rule has significant tribal implications, as it will have 
substantial direct effects on one or more Indian tribes and on the 
relationship between the Federal Government and Indian tribes. The 
Department therefore has engaged in meaningful consultation and 
collaboration with tribal officials in developing this rule. More 
specifically, the Department of Justice participated in six 
consultations with tribal officials on the Tribal Law and Order Act of 
2010. The dates and locations of those tribal consultations were as 
follows:
     October 14, 2010, in Billings, Montana
     October 20, 2010, in Albuquerque, New Mexico
     October 28, 2010, in Miami, Florida
     November 16, 2010, in Albuquerque, New Mexico
     December 8, 2010, in Palm Springs, California
     March 23, 2011, in Hayward, Wisconsin
    The last two consultation sessions focused on section 221 of Public 
Law 111-211, with the March 23, 2011 consultation expressly addressing 
a draft version of this proposed rule.
    During these consultations, some tribal officials expressed a 
desire to see the Attorney General consent to each and every tribal 
request for concurrent Federal criminal jurisdiction. Other tribal 
officials raised more specific concerns. In direct response to the 
latter, the Department of Justice significantly rewrote portions of the 
draft proposed rule. Eight changes are particularly noteworthy.
    First, rather than giving priority only to those tribal requests 
received by August 31 of any calendar year, the proposed rule now gives 
priority to requests received by August 31 or by February 28. This 
change effectively doubles the number of annual cycles in which the 
Department will consider tribal requests on a prioritized basis.
    Second, the proposed rule now allows tribes to ask the United 
States to assume concurrent criminal jurisdiction either over all 
violations of the General Crimes and Major Crimes Acts within the 
tribe's Indian country or over a subset of those violations that is 
clearly defined in the tribal request. Thus, requests can now focus on 
a limited set of crimes or on crimes in a limited geographic portion of 
the tribe's Indian country.
    Third, the proposed rule now clarifies why it is unnecessary, under 
the Department's understanding of the applicable statutes, for a tribe 
in an ``optional'' Public Law 280 jurisdiction to request an assumption 
of concurrent Federal criminal jurisdiction.
    Fourth, the proposed rule now clarifies that Federal agencies are 
to supply comments and information relevant to each tribal request, 
rather than merely announcing their overall support or opposition for 
each request.
    Fifth, the proposed rule reiterates that the assumption of 
concurrent Federal criminal jurisdiction under section 221 does not 
require the agreement, consent, or concurrence of any State or local 
government.
    Sixth, the proposed rule now expressly provides that the 
Department's Office of Tribal Justice may give appropriate technical 
assistance to any tribe that wishes to prepare and submit a renewed 
request, following the denial of an earlier request.
    Seventh, the proposed rule now states that the assumption of 
concurrent Federal criminal jurisdiction will commence within six 
months of the decision to assume jurisdiction, if feasible, rather than 
merely mandating action within twelve months.
    Eighth and finally, the proposed rule now requires that notice of a 
decision consenting to the request for assumption of concurrent Federal 
criminal jurisdiction will be published in the Federal Register.
    The Department of Justice thus believes that many of the concerns 
that tribal officials expressed about section 221 and the draft 
proposed regulation at the tribal consultations in 2010 and 2011 have 
now been met.

[[Page 29678]]

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This rule provides 
only a framework for processing requests by Indian tribes for the 
assumption of concurrent Federal criminal jurisdiction over certain 
Indian country crimes, as provided for by section 221.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995, Public Law 104-4.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Paperwork Reduction Act

    Section 221 of Public Law 111-211 permits certain Indian tribes to 
request that the United States accept concurrent jurisdiction to 
prosecute violations of the General Crimes Act, 18 U.S.C. 1152, and the 
Major Crimes Act, 18 U.S.C. 1153, within that tribe's Indian country. 
This jurisdiction will be concurrent among the Federal Government, the 
State government, and (where applicable) the tribal government. Section 
221 provides for the United States to assume concurrent criminal 
jurisdiction at the tribe's request, and after consultation between the 
tribe and the Attorney General and consent to Federal jurisdiction by 
the Attorney General. The Department of Justice will be submitting the 
information collection request set forth below to the Office of 
Management and Budget for review and clearance in accordance with the 
review procedures of the Paperwork Reduction Act of 1995. The 
information collection is published to obtain comments from the public 
and affected agencies.
    All comments, suggestions, and questions should be directed to Mr. 
Tracy Toulou, Director, Office of Tribal Justice, Department of 
Justice, 950 Pennsylvania Avenue, NW., Room 2310, Washington, DC 20530.
    Written comments and suggestions from the public and affected 
agencies concerning the collection of information are encouraged. 
Comments on the information collection-related aspects of this rule 
should address one or more of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.

Overview of This Information Collection

    (1) Type of Information Collection: New collection.
    (2) Title of the Form/Collection: Request to the Attorney General 
for Assumption of Concurrent Federal Criminal Jurisdiction.
    (3) Agency form number, if any, and the applicable component of the 
Department of Justice sponsoring the collection: No form. Component: 
Office of Tribal Justice.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Tribal governments.
    Other: None.
    Abstract: The Department of Justice is publishing a proposed rule 
to establish the procedures for an Indian tribe whose Indian country is 
subject to State criminal jurisdiction under Public Law 280 (18 U.S.C. 
1162(a)) to request that the United States accept concurrent criminal 
jurisdiction within the tribe's Indian country, and for the Attorney 
General to decide whether to consent to such a request. The purpose of 
the collection is to provide information from the requesting tribe 
sufficient for the Attorney General to make a decision whether to 
consent to the request.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to collect the required 
information is: Fewer than 350 respondents; 80 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: 28,000 hours.
    Fewer than 350 Indian tribes are eligible for the assumption of 
concurrent criminal jurisdiction by the United States. The Department 
of Justice does not know how many eligible tribes will, in fact, make 
such a request. Since the enactment of the Tribal Law and Order Act on 
July 29, 2010, the Department of Justice has received three such 
requests as of April 1, 2011.
    The information collection requirements contemplated by this 
proposed rule are new requirements that will require a new OMB Control 
Number. The Department is seeking comment on these new requirements as 
part of this proposed rule. These new requirements will require Indian 
tribes seeking assumption of concurrent criminal jurisdiction by the 
United States to provide certain information relating to public safety 
within the Indian country of the tribe.
    If additional information is required, contact: Lynn Murray, 
Department Clearance Officer, Policy and Planning Staff, Justice 
Management Division, U.S. Department of Justice, Two Constitution 
Square, 145 N Street, NE., Suite 2E-502, Washington, DC 20530.

List of Subjects in 28 CFR Part 50

    Administrative practice and procedure, Crime, Indians.

    Accordingly, for the reasons set forth in the preamble, part 50 of 
chapter I of title 28 of the Code of Federal Regulations is proposed to 
be amended as follows:

PART 50--STATEMENTS OF POLICY

    1. The authority citation for part 50 is revised to read as 
follows:

     Authority:  5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510; 
42 U.S.C. 1921 et seq., 1973c; and Public Law 107-273, 116 Stat. 
1758, 1824.

    2. Section 50.25 is added to read as follows:

Sec.  50.25  Assumption of concurrent Federal criminal jurisdiction in 
certain areas of Indian country.

    (a) Assumption of concurrent Federal criminal jurisdiction. (1) 
Section 221 of Public Law 111-211 permits the United States to accept 
concurrent Federal criminal jurisdiction to prosecute

[[Page 29679]]

violations of 18 U.S.C. 1152 (the General Crimes, or Indian Country 
Crimes, Act) and 18 U.S.C. 1153 (the Major Crimes, or Indian Major 
Crimes, Act) within areas of Indian country in the States of Alaska, 
California, Minnesota, Nebraska, Oregon, and Wisconsin that are subject 
to State criminal jurisdiction under Public Law 280, 18 U.S.C. 1162(a), 
if the tribe requests such an assumption of jurisdiction and the 
Attorney General consents to that request. Once the Attorney General 
has consented to an Indian tribe's request for concurrent Federal 
criminal jurisdiction, the General Crimes and Major Crimes Acts shall 
apply in the Indian country of the requesting tribe, and criminal 
jurisdiction over those areas shall be concurrent among the Federal 
Government, the State government, and (where applicable) the tribal 
government. Assumption of concurrent Federal criminal jurisdiction 
under section 221 does not require the agreement, consent, or 
concurrence of any State or local government.
    (2) Section 221 also permits the United States to accept such 
concurrent Federal criminal jurisdiction in other areas of Indian 
country as to which States have assumed optional Public Law 280 
criminal jurisdiction under 25 U.S.C. 1321(a), if a tribe so requests 
and after consultation with and consent by the Attorney General. The 
Department does not believe, however, that such requests are necessary, 
because the Department understands the applicable statutes to establish 
such concurrent Federal criminal jurisdiction without the need for a 
request by a tribe or acceptance by the United States.
    (b) Request requirements. (1) A tribal request for assumption of 
concurrent Federal criminal jurisdiction under section 221 shall be 
made by the chief executive official of a federally recognized Indian 
tribe that occupies Indian country listed in 18 U.S.C. 1162(a). For 
purposes of this section, a chief executive official shall include a 
tribal chairperson, president, governor, principal chief, or other 
equivalent position.
    (2) The tribal request shall be submitted in writing to the 
Director of the Office of Tribal Justice at the Department of Justice. 
The tribal request shall explain why the assumption of concurrent 
Federal criminal jurisdiction will improve public safety and criminal 
law enforcement and reduce crime in the Indian country of the 
requesting tribe. The tribe may ask the United States to assume 
concurrent criminal jurisdiction either over all violations of the 
General Crimes and Major Crimes Acts within the tribe's Indian country 
or over a subset of those violations that is clearly defined in the 
tribal request.
    (c) Process for handling tribal requests. (1) Upon receipt of a 
tribal request, the Office of Tribal Justice shall:
    (i) Acknowledge receipt;
    (ii) Open a file;
    (iii) Promptly publish a notice in the Federal Register, seeking 
comments from the general public;
    (iv) Promptly seek comments from the relevant United States 
Attorney's Offices, the Federal Bureau of Investigation, and other 
Department of Justice components that would be affected by consenting 
to the request;
    (v) Promptly seek comments from the Department of the Interior 
(including the Bureau of Indian Affairs), the Department of Homeland 
Security, other affected Federal departments and agencies, and Federal 
courts;
    (vi) Promptly consult with the requesting tribe, consistent with 
applicable Executive Orders and Presidential Memoranda on tribal 
consultation; and
    (vii) Promptly seek comments from other affected agencies, 
including State and local law enforcement agencies.
    (2) An Indian tribe may submit a request at any time. However, 
requests received by February 28 of each calendar year will be 
prioritized for decision by July 31 of the same calendar year, if 
feasible; and requests received by August 31 of each calendar year will 
be prioritized for decision by January 31 of the following calendar 
year, if feasible.
    (d) Factors. Factors that may be considered in determining whether 
or not to consent to a tribe's request for assumption of concurrent 
Federal criminal jurisdiction include the following:
    (1) Whether consenting to the request will increase the 
availability of law enforcement resources for the requesting tribe, its 
members, and other residents of the tribe's Indian country.
    (2) Whether consenting to the request will improve access to 
judicial resources for the requesting tribe, its members, and other 
residents of the tribe's Indian country.
    (3) Whether consenting to the request will improve access to 
detention and correctional resources for the requesting tribe, its 
members, and other residents of the tribe's Indian country.
    (4) Other information received from the relevant United States 
Attorney's Offices, the Federal Bureau of Investigation, and other 
Department of Justice components that would be affected by consenting 
to the request.
    (5) Other information received from the Department of the Interior 
(including the Bureau of Indian Affairs), the Department of Homeland 
Security, other affected Federal departments and agencies, and Federal 
courts.
    (6) Other information received from tribal consultation.
    (7) Other information received from other sources, including State 
and local law enforcement agencies.
    (e) Federal comments. (1) The deciding official shall consider any 
comments from the relevant United States Attorney's Offices, the 
Federal Bureau of Investigation, and other Department of Justice 
components.
    (2) The deciding official shall consider any comments from the 
Department of the Interior (including the Bureau of Indian Affairs), 
the Department of Homeland Security, other Federal departments and 
agencies, and Federal courts.
    (f) Tribal comments. The deciding official shall consider any 
comments from tribes and other tribal sources.
    (g) Other comments. The deciding official shall consider any 
comments from State, local, and other sources, although assumption of 
concurrent Federal criminal jurisdiction under section 221 does not 
require the agreement, consent, or concurrence of any State or local 
government.
    (h) Decision. (1) The decision whether to consent to a tribal 
request for assumption of concurrent Federal criminal jurisdiction 
shall be made by the Deputy Attorney General after receiving written 
recommendations from the Office of Tribal Justice (OTJ), the Executive 
Office for United States Attorneys (EOUSA), and the Federal Bureau of 
Investigation (FBI).
    (2) The deciding official will:
    (i) Consent to the request for assumption of concurrent Federal 
criminal jurisdiction, as of some future date certain within the next 
twelve months (and, if feasible, within the next six months), with or 
without conditions, and publish a notice of the consent in the Federal 
Register;
    (ii) Deny the request for assumption of concurrent Federal criminal 
jurisdiction; or
    (iii) Request further information or comment before making a final 
decision.
    (3) The deciding official shall explain the basis for the decision 
in writing.
    (4) A denial of a request for assumption of concurrent Federal 
criminal jurisdiction is not appealable. However, at any time after 
such a denial, a tribe may submit a renewed request for assumption of 
concurrent Federal criminal jurisdiction. A renewed request shall 
address the basis

[[Page 29680]]

for the prior denial. The Office of Tribal Justice may provide 
appropriate technical assistance to any tribe that wishes to prepare 
and submit a renewed request.
    (i) Retrocession of State criminal jurisdiction. Retrocession of 
State criminal jurisdiction under Public Law 280 is governed by 25 
U.S.C. 1323(a) and Executive Order 11435 of November 21, 1968. The 
procedures for retrocession do not govern a request for assumption of 
concurrent Federal criminal jurisdiction under section 221.

    Dated: May 16, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-12541 Filed 5-20-11; 8:45 am]
BILLING CODE 4410-07-P
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